A glance at the Nordic Legal Culture
By Jill Robbie, Lecturer in Private Law
Last week, I attended the 13th Nordic Patrimonial Law conference, which was held at the University of Helsinki. This conference is held every two years and is part of a broader range of events and initiatives which are aimed at enhancing closer cooperation and exchange between Nordic legal scholars. There were researchers and practitioners there from Norway, Sweden, Denmark, Finland and Iceland. The presentations and discussions were in the Scandinavian languages, which means either Norwegian, Danish or Swedish. These languages are mutually intelligible, but I will admit as a (relatively new) Norwegian speaker, I did struggle with some of the more technical elements of Swedish law and with some aspects of Danish pronunciation. I was, however, not alone. It has been noted that in relation to Nordic communication, “no one fully understands everybody, but everybody understands somebody.”[1] To assist understanding, a Nordic legal dictionary has recently been compiled with almost 1,000 common legal words being listed in Danish, the two versions of Norwegian (don’t even get me started on that…), Swedish, Islandic and Faroese. The decision to continue conducting the conference in the Scandinavian languages shows a strong dedication to the project of Nordic cooperation. Yet, the multi-lingual nature of the interaction was just one of the intriguing features of this conference.
It was my first time attending this event and it gave me a fascinating insight into the Nordic legal culture. The conference began with presentations by doctoral researchers and Henrik Jorem from the University of Bergen was the first to present on the topic of the “Protection of Property Rights under the ECHR.” One of the first questions for Henrik was “What would Alf Ross say about all this?” – a reference to the famous Scandinavian Legal Realist whose article “Tû Tû”[2] mocked the abstract conceptualism of property law. This was the first sign to me that I had entered a legal arena with a different set of values against which research was benchmarked.
The programme (in Swedish), contained a broad range of themes – some of which were more familiar than others. The panel on Digitalisation was one of the more familiar themes. However, the approach appeared to be different to that taken by a Continental European or American property conference. Instead of discussing whether new technological developments like accumulations of personal data or cryptocurrencies can be owned, there was a focus on what ethical principles should be used to guide the development of the law and what questions we should be asking in conducting our research. In a session on Blockchains, there were arguments that we had all the legal tools required to deal with this new technological development but we needed to ensure that the risks of these developments for society were minimised.
The emphasis on ethics was also clear in the more unfamiliar theme of “Morality, Ethics and Common Sense in Patrimonial Law”. Under this theme, Hans Petter Graver, from the University of Oslo, gave an excellent presentation on the role of good practice in law today. He described the changes currently taking place in Nordic societies such as increasing pluralism, less weight on the collective and more weight on the individual, as well as a questioning of traditional authorities. He argued that in this context we require good practice as a moral supplement to the legal framework in order to continue the development of the law with empathy and reflection. Also included under this theme was a panel on “Contractual Terms on Sustainable Development” with presentations on the problems that can be caused by including such terms, but also how private lawyers can use existing legal tools to overcome these challenges and consideration of the other ways in which researchers can contribute to the goals of social justice and environmental protection. The impression I received from these presentations supports the claim of Jaakko Husa, Kimmo Nuotio and Heikki Pihlajamäki when they state: “Our fundamental claim is that Nordic law has for centuries already been informed by an inclusive and status-orientated view of social justice and social ethics which has been relevant to the general outlining of the legal system, and which has survived many processes of social and cultural transformation.”[3]
There are, of course, differences between the Nordic systems. Norway was highlighted as having a slightly more “moral” standpoint following the presentation of a case from 2017 regarding cohabitants by Hilde Hauge from the University of Bergen. After one of the cohabitants had been unfaithful, the couple had entered into a contract that his portion of the ownership of their house and car would be transferred to his cohabitant in the event the cheating was repeated. The issue in this case was whether the contract was invalid due to being contrary to common decency or otherwise unreasonable. However, this contract was upheld by the courts with the reasoning that fidelity was a basic moral principle of cohabitation and is not normally regarded as a particularly burdensome obligation. This led to peals of laughter from a Danish scholar, who took the view that it was not the role of the law to regulate the private lives of people in this way.
Overall, I was impressed by the range of presentations and the engagement within the discussions on broad issues of justice and equality in the context of globalisation. The normative issues of patrimonial law - or more narrowly property law - were discussed in a far more explicit way than I am accustomed to other contexts with the exception perhaps of South Africa. Nevertheless, this was combined with the pragmatism of dealing with real world issues – for which the Nordic legal culture is famous. Rather than getting wound up on conceptualisations, I felt encouraged in the discussions to see through the doctrine towards a more solutions-based approach. The conference ended with a final panel on the question: “How can Nordic commercial law cope within Anglo-American business reality?” Here there seemed fear expressed about the pressure of outside influence in terms of language and tradition which are affecting the distinctive nature of the Nordic legal culture. Of course, as a Scottish scholar, I am used to hearing these debates, although in Scotland, we do not have the natural barrier that a separate language (or languages) creates to insulate a legal culture. My experience of this conference is that Nordic legal culture certainly has characteristics which are worth maintaining and should be of interest to the rest of Europe and beyond. We merely have to learn a Scandinavian language to access it.
[1] J Husa, K Nuotio and H Pihlajamäki, “Nordic Law – Between Tradition and Dynamism” in J Husa, K Nuotio and H Pihlajamäki, Nordic Law – Between Tradition and Dynamism (2007) p37.
[2] A Ross, “Tû Tû” (1957) 70(5) Harvard Law Review 812.
[3] J Husa, K Nuotio and H Pihlajamäki, “Nordic Law – Between Tradition and Dynamism” in J Husa, K Nuotio and H Pihlajamäki, Nordic Law – Between Tradition and Dynamism (2007) pv.
